Appellant, a woman, was convicted of murder with malice in that she killed Emma Jean Blocker, and was sentenced to serve twenty-five years in the penitentiary.
The statement of facts herein appears with the following qualification of the trial judge appended thereto:
"This statement of facts was filed by the attorney for the defendant with the Clerk of the District Court of Hays County, Texas, on June 29, 1940, without ever having been submitted to the District Attorney or to this Court, for approval, and the same was for the first time presented to this Court for approval on this the 27th day of July, 1940. At no time up to this date has the attorney for the defendant ever presented any statement *Page 120 of facts in this cause to me for my approval, nor has any such statement of facts ever been presented by defendant's attorneys to the District Attorney for his approval up to this date. And the above and foregoing statement of the true facts was filed by the defendant's counsel in the District Clerk's office June 29, 1940, without having been presented to the District Attorney or the Court, and this Court having found the above and foregoing statement of facts on file, approves the same on this the 27th day of July, A.D. 1940.
"The above statement of facts was not presented, and no other statement of facts was presented in this cause, to the Court or to the District Attorney for approval within the time allowed by the Court's orders herein, nor within the time allowed by law, and no agreed and approved statement of facts was filed in this cause in this Court within such time allowed by the Court's orders and the law.
"This the 27th day of July, A.D. 1940.
"M. C. Jeffery "Judge, District Court, "Hays County, Texas."
The motion for a new trial in this case was overruled on April 6, 1940, and it therefore appears that this statement of facts was approved by the trial court on July 27, 1940, or a total of 112 days after the overruling of the motion for a new trial. It is true that such statement was filed by the district clerk of Hays County at an earlier date and within the prescribed time, but such an act was unauthorized by law, the statement of facts not having been approved by the trial court, and same should not have been thus filed without the court's approval. We will be unable to consider such statement.
It further appears from the record that immediately upon the overruling of appellant's motion for a new trial, notice of appeal was given and entered of record, and 75 days from April 6, 1940, was granted within which to prepare and file statement of facts and bills of exceptions. Upon affidavit made and filed by appellant, the trial court entered its order directing the court reporter to "furnish appellant a complete statement of facts in this case without cost to her," said order being dated May 13, 1940, and said statement was prepared and completed on June 5, 1940. On some date not shown appellant's attorneys made application to the trial court for an extension of ten days relative to the time for filing statement of facts and bills of *Page 121 exception, which time was by the court granted and the final date for such filing extended ten days after June 20, 1940.
It will be observed that without presenting to, or receiving the approval of, the trial court, the bills of exception were filed with the district clerk on the 29th day of June, 1940, and thereafter handed to the district attorney on July 1, 1940, and by him taken to the town of Bellville, to the judge trying the case, on July 2, 1940, which date was beyond the time prescribed for the approval and filing of such bills. We also note that these bills were not approved and signed by the trial court until July 19, 1940, 20 days after the 85 days allowed had elapsed.
"It was the duty of counsel for the appellant to see to it that a statement of facts and bills of exception are presented to the judge, and to follow them up and see that they are approved and filed in time. x x x Nor can counsel excuse himself by showing negligence in the officers of the court or others whom he has attempted to make his agents to file bills or a statement." 4 Tex. Jur., p. 446, Sec. 309, and authorities there cited.
Under these circumstances we do not think this court would be justified in considering either the statement of facts or the bills of exceptions; all filed too late.
The proceedings considered by us appear to be proper and regular in form, and this judgment is therefore affirmed.
ON MOTION FOR REHEARING.